(Tenn., 256 S. W. 438.) Thompson v. Fidelity Mut. L. Ins. The case of Thompson v. Fidelity Mut. L. Ins. Co. supra, has no bearing upon the question under consideration. In that case the insured had defaulted in the payment of his premiums. The insured died on January 14, 1905, and was at the time in default in the payment of the premium that was due on December 30, 1904. It appeared that defendant insurance company had accepted premiums after they were due, and it was the contention of the plaintiff Thompson that, by an habitual course of dealing, the insured was justified in believing that the insurer would not insist upon the forfeiture of the policy for the failure to pay premiums at maturity, but this court held that the facts were insufficient to establish such course of dealing. In holding that, while the insured was in default in the payment of his premiums, there was no insurance, and, if he died without having paid his premiums, he was not protected by the insurance, the court quoted from Carlson v. Supreme Council, A. L. H. 115 Cal. 466, 35 L.R.A. 643, 47 Pac. 375, the quotation set out in defendant's brief, to the effect that the rights of the parties became fixed upon the death of the insured upon the question of nonpayment of premiums. In Thompson v. Fidelity Mut. L. Ins. Co. supra, the court said: "The policy provides that, after three years, if the payments required shall have been made when due, the policy shall be incontestable. This only means that it shall be incontestable for causes other than the nonpayment of premiums, but does not in any wise relieve the insured from the payment of his premiums, but, on the contrary, expressly stipulates that they shall be kept up and paid when due, during the twenty-year life of the policy." In the case of Jefferson Standard L. Ins. Co. v. Smith, 157 Ark. 499, 248 S. W. 897, the incontestable clause contained in the policy sued on was as follows: "After this policy shall be in force for one full year from the date hereof, it shall be incontestable for any cause except for nonpayment of premiums." In the case of Jefferson Standard L. Ins. Co. v. McIntyre, supra, the incontestable clause in the policy sued on was as follows: "After this policy shall have been in force for one full year from the date hereof, it shall be incontestable for any cause except for nonpayment of premiums.' It will be noted that the incontestable clauses in the policies sued on in both of these cases were substantially the same, and, as a matter of fact, the same company was involved in both suits. The incontestable clause of the policies involved in the suit at bar provides: "This policy shall be incontestable after one year from the date of its issue, except for nonpayment of premiums." It will be noted that there is a marked difference in the two clauses. This difference consists in the language: "After this policy shall have been in force for one full year from the date hereof." In the case of Jefferson Standard L. Ins. Co. v. McIntyre, supra, the court said: "Are the policies 'in force,' as contemplated in the clause, after the death of the assured occurring prior to one year from the date of the policy? It seems to me that the proper construction of this clause is that it contemplates the continuance in life of the assured during that year; else why except the nonpayment of premiums?" It is apparent that the holding of the court in Jefferson Standard L. Ins. Co. v. Smith, supra, was controlled by the same consideration. These cases are not, therefore, controlling in the suit at bar. Defendant contends that it could not have enjoined plaintiff's suit, which was instituted within the contestable period, in view of the holding of this court in Sailors v. Woelfle, 118 Tenn. 755, 12 L.R.A. (N.S.) 881, 102 S. W. 1109. In that case this court said: "Hamilton v. Cummings, 1 Johns. Ch. 517, is possibly the leading case in America on this subject. In the course of his opinion, Chancellor Kent reviews the leading cases in England up to that time, and shows that there had been much fluctuation in the rulings of the various courts with regard to the exercise of this particular jurisdiction. He concludes his examination as follows: 'Perhaps the cases may all be reconciled on this general principle, that the exercise of this power is to be regulated by sound discretion as the circumstances of the individual case may dictate, and that the resort to equity, to be sustained, must be expedient either because the instrument is liable to abuse from its negotiable nature, or because the defense, not arising on its face, may be difficult or uncertain at law, or from some other special circumstance peculiar to the case, and rendering a resort highly proper and clear of all suspicion of any design to promote expense and litigation.' "We doubt whether the principle controlling the interference of equity courts at the instance of parties complaining, with a view to the cancelation of instruments, has been anywhere more clearly or satisfactorily stated than in this case." We think there was a special circumstance existing, which was peculiar to the case at bar, that would have given a court of equity jurisdiction if defendant had desired to take affirmative action to rescind or have the policies canceled after plaintiff's suit was instituted on March 5, 1920. All that would have been necessary to have given a court of equity jurisdiction would have been to have alleged in the bill that, on account of the incontestable provisions of the two policies pro By its second assignment of error, defendant insists that, plaintiff having failed to plead the incontestable clauses in said policies, he waived the same, and could not take advantage of and rely on said clauses in his motion for a directed verdict. As before stated, plaintiff made profert of the two policies in his declaration. The policies were introduced in evidence by the plaintiff, and the first page of one of the policies was read, and it was agreed that both of the policies were identical and that both of them would be considered as read. The incontestable clauses were read to the court and jury. In Bomar v. Hagler, 7 Lea, 89, this court said: "The rule is that a statute which bars the remedy only must be pleaded, but a statute which cuts off the right need not be pleaded, but may be relied upon as a protection if the facts appear; as, for instance, the statute which gives a title to personal property (Kegler v. Miles, Mart. & Y. 426), or a title to land (Act of 1819). "The reason is that a statute which merely bars the remedy may be answered by a new promise, or something that will take the case out of the statute (Allen v. Word, 6 Humph. 284), and therefore must be pleaded in order to give the opportunity to reply. portunity to reply. But a statute which cuts off the right or vests the title absolutely in the defendant, and to which there is no answer, need not be pleaded, for it cannot be answered." In the case of Waterhouse v. Sterchi Bros. Furniture Co. 139 Tenn. 117, 201 S. W. 150, this court said: conclusive of the case, the defense of fraud on the part of the insured in procuring said policies becomes immaterial. The judgment of the Court of Civil Appeals is therefore affirmed, with costs. On Petition to Rehear. (Tenn. 256 S. W. 438.) "The suit was based on the note. That instrument was not copied into the declaration so as to set forth the waiver, but profert was made of it, that being a formula in pleading whereby the pleader professes to bring into court an instrument to be shown to the court and to his adversary. It is true that mere profert of a note does not make the instrument, the foundation of the action, a part of the declaration, when that pleading is tested for sufficiency by a demurrer. Standard Loan & Acci. Ins. Co. v. Thornton, 97 Tenn. 1, 15, 40 S. W. 136. The court is confined to the face of the declaration in such test. "Now the question arises: Is the case to be deflected adversely by reason of the fact that the note is brought into the record by proof rather than by way of oyer granted? What substance can there be to support a divergent ruling? It would seem that, if the note becomes a part of the record by way of sworn testimony, it should not weigh less in plaintiff's favor than when it is imported into a pleading of record by way of a quasi fiction. "If, then, the proof had shown the note to contain the waiver, the motion in arrest of judgment could not be sustained for the reason that defendant Waterhouse's liability would not be conditional, upon his being given notice of protest, but absolute in that regard." Pleadingwaiver-failure in insurance policy. We think the holding of the above case directly settles the question contrary to defendant's contention, and it was not, therefore, necessary for plaintiff to expressly plead the into plead clauses contestable clauses contained in said policies. When the policies were introduced by the plaintiff in evidence, and the incontestable clauses read to the court and jury, they became a part of the record as effectively as if they had been relied on in a pleading, and plaintiff could rely on them in his motion for a directed verdict. The foregoing questions being This case is before the court on defendant's petition to rehear on one point, viz., that, plaintiff's suit having been brought within the contestable period provided in the policies sued on, this suspended the running of the period within which defendant might contest. It is said that this question was overlooked by the court, and was not passed on in its opinion filed on a former day of the term. The question was considered by the court in the determination of the case, but does not appear to have been directly discussed in the opinion filed. It is defendant's insistence that the incontestable clause contained in the policies sued on is a statute of limitation, and, the plaintiff having brought his suit before the statute run, this suspended the running of the statute, and defendant could present its defenses against the policies after that time in the orderly progress of the case. In support of this contention it cites the case of Lewis v. Turnley, 97 Tenn. 197, 36 S. W. 872. In that case suit was instituted upon a note. Defendant filed an answer and a cross bill, and in the cross bill contended that when the property was sold, for which the note was given as a part of the consideration, the vendor agreed that certain insurance upon the improvements on the premises was to be transferred, and that the vendor agreed that, if the property burned before the insurance was transferred, he would be liable for the insurance. The vendor failed to transfer the insurance, and the insured's property burned. The plaintiff interposed the Statute of Limitations to the set-off of defendant, and the court held that, since the claim of the defendant was a proper set-off and was evolved from the consideration of the original contract, the filing of the bill saved the bar of the statute. The other cases cited by defendant involved a similar question. In Clark v. Duncanson, 79 Okla. 180, 16 A.L.R. 315, 192 Pac. 806, plaintiff commenced an action within twelve months of the recording of his tax deed, to quiet title. He made the former owner of the property a party defendant. The de fendant, after the expiration of twelve months from the recording of the tax deed, filed an answer, entitled the same "Answer and Cross Petition," in which he assailed, on several grounds, the validity of the tax sale and tax deed, and prayed judgment against the plaintiff for possession and damages. It was held that the so-called cross petition was a counterclaim, within the meaning of $ 4746, Revised Laws 1910, and within the Statute of Limitations until the claim of the plaintiff is so barred. We think these cases have no application to the question under consideration. While incontestable clauses in insurance policies have been referred to by some of the decisions as a short statute of limita Insurancecharacter of incontestable clause. tions, it is not such. It is a contractual limitation, and is not governed by principles applying to statutes of limitations. A similar clause to the one in the policies sued on has been construed in a number of cases. In Monahan v. Metropolitan L. Ins. Co. 283 Ill. 136, L.R.A.1918D, 1196, 119 N. E. 68, the court said: "In case of a breach of warranty the insurer must assert its claim within the two-year period, whether the insured survives that period or not, either by affirmative action or by defense to a suit brought on the policy by the beneficiary within the two years." In Ebner v. Ohio State L. Ins. Co. 69 Ind. App. 32, 121 N. E. 315, the In Metropolitan L. Ins. Co. v. Peeler, Okla., 6 A.L.R: 441, 176 Pac. 939, the court said: "The language admits of no reasonable construction other than that the company reserves to itself the right to ascertain all the matter and facts material to its risk and the validity of its contract for one year; and that if within that time it does not ascertain all the facts, and does not cancel and rescind the contract, it may not do so afterwards upon any ground then in existence. In Ramsey v. Old Colony L. Ins. Co. 297 Ill. 592, 131 N. E. 108, the court said: "It admits of no reasonable construction, as the courts have said in the cases already cited, other than that the company may have one year, and no more, for investigation of the questions material to its risk, and if it does not within that time, either as plaintiff or defendant, contest the policy, it cannot do so afterward." The court further said in that case: "The death of the insured within the year did not remove the contractual limitation upon the right of the company to contest its liability on the policy, but the fact that, without the fault of the company, there was no party in existence against whom it could begin suit, and that it had no power to have an administrator appointed for that purpose, suspended the operation of this provision until an administrator was appointed. "When the insured died, on April 13, 1917, seven months of the year after the policy was issued had elapsed. The administrator was not appointed until July, 1918. After that there was nothing to prevent (Tenn., 256 S. W. 438.) the defendant from contesting its liability on the policy. Suit was begun against it in November, 1918, but it filed no plea denying its liability upon the policy until May, 12, 1919, nearly ten months after the appointment of the administrator, and, excluding the time during which it was prevented from bringing suit by reason of the failure to appoint an administrator, nearly seventeen months after the date of the policy. The plea alleged that knowledge of the falsity of the answers did not come to the defendant until July 1, 1918, but there were several months after its discovery of the fraud and after the appointment of the administrator before the expiration of the year in which it might have filed a bill to cancel the policy. It failed to do so, and by its neglect permitted the incontestable period fixed by the policy, even under the construction which we have given it, to elapse." These cases are all cited in the opinion of the court, heretofore filed in this case. In Mutual L. Ins. Co. v. Buford, 61 Okla. 158, 160 Pac. 928, it was said: "It seems to be a well-recognized principle of insurance law that a provision in a contract of insurance limiting the time in which the insurer may take advantage of certain facts that might otherwise constitute a good defense to its liability on such policy other than the defenses excepted in the provision itself. It also seems to be generally held that such a clause precludes the defense of fraud, as well as other defenses, and that it is not invalid on the theory that it is against public policy, provided the time in which the defenses must be made is not unreasonably short. An examination of the following cases will show that the holdings of the courts of this country have been universally that every defense to a policy of insurance embraced within the terms of the 'incontestable clause' is completely lost to the insurer, if it fails to make the defense or take affirmative action within the time limited by the policy." Citing many authorities. It is true that in none of these cases suit was brought before the contestable period had expired, but they show the construction that was placed on an incontestable clause similar to the one in question, and it was held in all of them that the insurer must assert its claim within the period stipulated, either by affirmative action or by defense to a suit brought on the policy, within the contractual period. It The incontestable clause in the policies sued on was written into them by the defendant itself. was contractual, and the effect of it was to prevent the insurer from interposing as a defense the falsity of the representations of the insured, which might be fraudulent. In other words, defendant said to the insured: "I will take one year in which to ascertain whether your representations are false, and whether you have been guilty of any fraud in obtaining the contract, and if, within that period, I do not ascertain or discover such falsity and fraud, I agree to make no further inquiry into these matters, and make no defense on account of them." There was no stipulation for a suspension of the running of the limitation for any reason. The right of the defendant to contest, except for nonpayment of premiums, was, by the stipulation, foreclosed at the expiration of the period contracted for, notwithstanding plaintiff's suit was brought two days before the limitation expired. The letter of defendant written on January 30, 1920, to plaintiff, would indicate that it had knowledge or information of the insured's alleged misrepresentations on that date, which was more than a month before the period of limitation expired; still it took no action to rescind the policies on that ground. The clause in question being merely contractual, and containing no provision for its suspension in |